GN 00204.010 Protective Filing

If certain criteria are met, protective filing is established on the date SSA receives a written statement of intent to file for Title II, Title VIII, or Title XVI benefits or an oral inquiry about Title XVI benefits at one of the locations described in GN 00204.006.

GN 00204.055 for protective filing policy when an Internet application is established.

IMPORTANT: Information input into the Visitor Intake Process (VIP) system is not a protective filing. However, information entered into the 800 Number Leads/Protective Filing appointment screens establishes a protective filing.

NOTE: If the individual is eligible for benefits (or will become eligible within 4 months) and he or she requests benefit information but does not want to file an application, follow the procedures in GN 00204.012C for closing out the protective filing which has been established in this situation.

If a proper applicant files a valid application within the Title VIII 60-day protective filing period, as described in VB 00201.020C, or the Title II 6-month protective filing period or Title XVI 60-day protective filing period, as described in GN 00204.012B, the protective filing date is the application filing date. See GN 00204.007A.1. and the EXCEPTION in SI 00601.009C.2.a. for when the receipt date of the application may be input into the system as the application filing date.

The earliest open protective filing date is always controlling. However, there may be more than one protective filing closeout period that is established before a signed application is obtained. Therefore, if a protective filing closeout notice was already issued but a new protective filing occurs, the new protective filing date must also be documented and closed out.

EXAMPLE: If a closeout notice was issued when the first protective filing occurred, but a teleclaim was subsequently taken and sent out for a “wet” signature (instead of being signed via attestation) within the 6-month protective filing period, the teleclaim constitutes a new protective filing date because we do not have a signed application at this point. The protective filing resulting from the teleclaim must also be closed out, giving the claimant a new 6-month closeout period based on the new protective filing. If the claimant returns the signed teleclaim before the end of the first protective filing period, the protective filing date established from the first contact must be used as the application filing date. If, however, a signed application is not obtained before the end of the first protective filing closeout period, the new protective filing date may be used as the application filing date if a signed application is received before the new closeout period ends.

See GN 00204.014 for completing the Title II application cover notice and SI 00601.040 for completing the Title XVI application cover notice.

An inquiry to reschedule an application appointment does not meet the criteria of a new protective filing date since the contact for the initial appointment established the protective filing date.

EXAMPLE: Jane Doe called the 800 Number on 1/5 to make an appointment to file an application for disability benefits. Her appointment is for 1/12. Since her appointment date is at least 7 days in the future, the field office (FO) issues the appointment confirmation notice which also includes the Title II protective filing closeout language. Ms. Doe recontacts us to reschedule the appointment. On 1/20 the claims representative (CR) takes the teleclaim application and mails it to Ms. Doe for her “wet” signature along with an SSA-L566-U2 (Application Letter) notice. Since the date the teleclaim was taken establishes a new protective filing date, the SSA-L566-U2 notice will close out the 1/20 protective filing date and remind the applicant of the earlier protective filing closeout date issued on the appointment confirmation notice. Ms. Doe returns the signed application on 2/3. Her application filing date is 1/5.

NOTE: See GN 00204.014B.3. for choosing the appropriate closeout language block for the SSA-L566-U2 notice.

The written statement must show the writer's intent to claim benefits either for himself or herself or on behalf of another.

Use the following policy guidelines in establishing intent to file by a claimant or proper applicant:

The expression of intent need not be on a specific form, or in a particular format. If intent to file for Title II benefits is made orally, it must be documented and signed per GN 00204.010B.2.

If intent to file is not clearly expressed, evaluate the facts in the writing to determine if intent can be reasonably inferred. When in doubt and intent can be reasonably inferred, assume intent to file.

The writer must be reasonably indicating intent to file for benefits currently and not intent to file at some future date; e.g., wishes to file at full retirement age which is beyond the Title II four month or Title XVI one month advance filing procedure.

For policy guidelines used in establishing intent to file by a third-party, non-proper applicant, see GN 00204.013.

A written statement of intent to file must be signed or initialed (this includes typed signatures and initials) by the claimant, a third party, or an SSA employee to establish the protective filing date. An SSA employee's personal identification number (PIN) satisfies the signature requirement when the employee completes the 800 Number System Worksheet to document the protective filing date. A written statement also includes the date the claimant or third party first completes the Internet Claim (iClaim) Applicant Identification screens and selects the “Next Page” to receive the Application Number. See GN 00204.003 for determining a proper applicant for Title II benefits and SI 00601.012 for determining a proper applicant for Title XVI benefits. See GN 00204.055 for iClaim instructions.

Only the person claiming benefits or a proper applicant for that person may sign an application for benefits. See GN 00204.003 and SI 00601.012 for proper applicant policy. A valid application must be received within the Title II 6-month protective filing closeout period or the Title XVI 60-day protective filing period. For requirements and general information of a valid application, see GN 00204.001.

EXCEPTION: If the claimant dies before the application is filed or dies after it is filed but before we effectuate it, follow the instructions in GN 00204.005 (Claimant Dies before Filing/Effectuation). If Title XVI benefits are involved, also see SI 02101.003 through SI 02101.010 for who may receive a Title XVI underpayment.

C. Policy – establishing intent to file for auxiliaries and survivors named on a Title II application

Naming a current spouse on the NH's Title II application or iClaim who is potentially entitled to spouse benefits (i.e., except for filing an application) and appears to meet the factors of entitlement for spouse's benefits in RS 00202.001C establishes a protective filing for spouse’s benefits and any other Title II benefits unless:

the form specifically states that the NH does not wish to protect the current spouse's filing date, or

the NH is not entitled to benefits (and, therefore, the spouse cannot be entitled on the NH's SSN).

Since the spouse will be automatically protected, it is not necessary to ask the NH about his or her desire to protect the spouse's benefits. However, if the NH raises the issue and does not wish to protect the potentially entitled current spouse's filing date or the spouse is not entitled to a spouse benefit but could be entitled to a benefit on another SSN, treat the naming of the current spouse as a lead for potential Title II entitlement and process promptly to prevent a loss of benefits. See GN 00202.020 Processing Leads.

NOTE: If you are completing a retirement application on a paper SSA-1, skip question 11 (the spousal protective filing question).

Naming a potentially entitled divorced spouse on the NH's Title II application, as required by marriage documentation procedure in GN 00205.070C, constitutes a lead that must be processed promptly in accordance with GN 00202.020.

Naming a child on a Title II application establishes a protective filing for the child. If a child is not specifically named, but the application includes enough information to identify the child, find intent to file for that child. For example, an unborn child whose birth is referred to on the NH's application with a statement such as: “My wife is pregnant and expecting our baby in 4 months” receives the same filing date protection as the NH. The CR must prepare a manual diary to control and send out the closeout notice to the NH in the month of the child's expected birth. Policies and procedures for protecting the interests of a child, including establishing a protective filing date for the child are in RS 00203.050.

EXCEPTION: If the NH's spouse, former spouse, widow(er), or any other applicant who files a Title II application on behalf of his or her child with the NH also states that he or she thinks the NH may have a child in another household, but has no information about that child, this as a lead. See GN 00202.020 for processing leads. Do not establish a delayed claimant on the MBR for this individual per GN 01010.140A.2.

EXAMPLES: The following examples illustrate what is a protective writing and what is a lead.

Example 1If Henry is specifically listed as a child on Fred’s DIB (HA) application, this is a protective writing for Henry.

Example 2If Fred’s ex-wife, Kathy, names or provides enough information to identify Henry as the NH’s child on an application for Fred’s other children, this is also a protective writing for Henry. Place Henry on the MBR as a Delayed Claimant if development is still outstanding for him and the other criteria in GN 01010.140A.1. are met. This will ensure the children for whom Kathy is filing are not overpaid if Henry’s claim is subsequently awarded.

Example 3If Kathy only thinks there is another child of Fred’s in another household but she cannot provide enough information to identify this child, this is only a lead. Do not establish this child on the MBR as a Delayed Claimant since no protective writing has been established, and doing so would erroneously reduce the other children’s monthly benefit amounts (see GN 01010.140A.2.).

NOTE: If Fred dies, Kathy files a survivors application for Fred’s other children and does not mention Henry, but Henry’s name is listed in the NH’s obituary in the newspaper, this is not even a lead (i.e., someone would first have to contact SSA and inquire on Henry's behalf).

If the NH filed for Title XVI benefits, did not list all or any of his or her children on the filed Title XVI application, but did list the child(ren) on the Title II supplemental application, the child(ren) named are protected as of the filing date of the Title XVI application. See GN 00204.027 for processing open Title II applications. However, for 216(h)(3) children, if the child was not named on the Title XVI application, but was named on the supplemental Title II application, the filing date of the Title XVI application cannot be used as the date of a written acknowledgement. See GN 00306.100D.2. for determining the effective date of relationship for a 216(h)(3) child.

CAUTION: It is important to explore eligibility for all classes of Title II benefits for children named on the NH's application.

Naming a parent on the CDB application establishes intent to file for the parent if the parent is providing care for the CDB beneficiary. If the parent does not wish to file (e.g., parent is working and earnings would result in a suspension of benefits), the protective writing must be closed out, see GN 00204.012C.

Mr. Jones is age 62 and retired. He writes a letter to his local Social Security office to inquire about the requirements for filing for benefits. Since Mr. Jones is potentially eligible for retirement benefits, his request for information on filing for benefits is considered an implied intent to file. His letter is received on 4/2. The U.S. postmark date on the envelope is 3/31. Mr. Jones' protective filing date is 3/31, since that date is more advantageous than the actual receipt date.

Ms. Smith is age 58. She calls the 800 Number to obtain a benefit estimate statement. Ms. Smith states that she is not disabled. Her request for a benefit estimate should be treated as a request for information and not intent to file.

c. Example 3: Potentially entitled spouse and children named on the application

Mr. Johnson files a retirement application and is entitled to benefits. He lists his current spouse and children on the application. Mr. Johnson protects the filing date on behalf of his spouse and children by naming them on his application.

Mr. James files a retirement application and lists his divorced spouse on the application. Mr. James stated that he was married to his former spouse for 20 years. His former spouse is potentially eligible for divorced wife's benefits. Naming the divorced spouse on his application is a lead.

Mr. Bill Simons visits the FO on 10/20 and inquires about filing for Title II disability insurance benefits on behalf of his brother, Lee, who wants to file but would like Bill’s assistance. Mr. Bill Simons states that he does not have time to wait for an interview and would like to schedule an appointment. The service representative (SR) completes the 800 Number System Leads/Protective Filing screens to protect Mr. Lee Simons' filing date and to schedule the appointment. The SR mails Mr. Lee Simons an appointment confirmation notice which includes protective filing closeout language. This notice advises him that if he files his disability application within 6 months after the date on the notice, we will use the date his brother, Bill Simons, visited the FO as the application filing date. See GN 00204.010B.3. for the requirement for filing a valid application.

IMPORTANT: When a prior Title II retirement determination is being reopened and the original application was an abbreviated application (ABAP), the NH did not have the opportunity to name his or her spouse/child(ren) (i.e., the DEPC screen was not in the path). Therefore, if a supplemental application is obtained to name the spouse/child(ren), they are protected as of the NH's original filing date of the ABAP, providing all entitlement factors for them are met. However, if the prior application was an abbreviated application for disability or the Lump Sum Death Payment and the determination is being reopened, unnamed spouse/child(ren) are not protected since the DEPC screen would have been available to name spouse/child(ren) when the ABAP was filed. If immediate payment, family maximum, and multiple family units are involved, see GN 01010.110 through GN 01010.120 for partial adjudication and GN 01010.140 for delayed claimants.

NOTE: A Title XVIII application (i.e., Medicare-Only) does not provide protective filing for auxiliaries, unless the NH requests to change his or her Medicare application to a Title II application prior to adjudication.

D. Policy – establishing intent to file for individuals named on a Title XVI application or redetermination (RZ) form

See SI 00601.020 for when an individual named on a Title XVI application or RZ form constitutes intent to file for Title XVI benefits for that person. See GN 00204.015C.2. for when the naming of an individual, other than the claimant, on an RZ form is a protective filing for Title II benefits.

The scope of the protective writing is determined by the application subsequently filed. If you receive a valid application within the protective filing closeout period described in GN 00204.010A.3., the protective writing protects all benefits on all earnings records (ERs) to which the claimant may be entitled. If the Title II application filed as a result of a protective writing contains any restrictions in the scope of the benefit, the scope of the writing is restricted to those benefits. See GN 00204.010C.3. for auxiliaries and survivors named on an application. If a protective filing date exists for an auxiliary or survivor named on the claimant's application, the auxiliary/survivor is protected as of the filing date of that application. The same policy applies to Title VIII benefits. See GN 00204.007 for determining the filing date.

The Title II protective filing date also establishes the filing date for Title XVIII benefits (Part A) including automatic enrollment for premium based Medicare based on health insurance (HI) entitlement. See HI 00805.001 through HI 00805.752 for Supplementary Medical Insurance (SMI) enrollment rules and HI 00805.170 and HI 00805.205 to determine whether equitable relief applies.

For Title XVI benefits, see SI 00601.020 for the scope of a Title XVI protective writing and SI 00601.025D for the scope of a Title XVI oral inquiry.

The following documents may serve as protective writings if the requirements are met in GN 00204.010B. This list is not all-inclusive. For documents not listed, determine if the criteria are met. If so, treat the document as a protective writing.

An 800 Number System Lead/Protective Filing screen

A letter asking about benefit rights

An email sent to SSA asking about benefit rights

A faxed document

NOTE: SSA's receipt of a faxed application form may protect the claimant’s filing date but is not considered a filed application until we receive the paper copy containing the proper applicant's signature.

An SSA-2514 (Record of Claimant's Intent to File) (or its electronic equivalent) signed by an SSA official or employee

The claimant's statement of intent to file on a form (e.g., SSA-795)

Welfare referral form

NOTE: The date SSA receives the welfare referral form from the State agency referring a potential claimant to SSA to file for Title XVI benefits may serve to protect the Title XVI filing date.

A claimant-initiated Social Security Statement request if, at the time the request is made, the claimant appears potentially eligible for benefits or expresses an interest in filing for benefits.

A written statement of intent to file that is filed with a hospital, e.g., admittance form or admission records, if:

NOTE: The protective filing date is the date the individual files the statement with the hospital.

A Title II or Title XVI application form

Naming an individual on an application form can protect that individual's filing date if the criteria in GN 00204.010B.1. are met. See SI 00601.020A.2. for when an individual named on a Title XVI application form constitutes a protective filing.

NOTE: You must manually establish a Protective Filing (PROTFL) issue on the Development Worksheet (DW01) for any individual named on the claimant's application that meets the criteria of a protective filing. Enter the protective filing date in the REQ field.

Title XVI RZ form (see GN 00204.015 for when a Title XVI RZ form is a protective filing for Title II benefits for the NH and his or her child(ren) named on the RZ).

A request for expedited reinstatement (EXR) of disability benefits filed with SSA if the individual decides not to pursue EXR or the EXR request is denied.

NOTE: A request for reinstatement of Title II disability benefits will also protect any potentially eligible children not previously entitled on the individual's record if they are named on the EXR request.

DD-1300 (Report of Casualty) for “Missing In Action (MIA)” only situations

The date the DD-1300 is prepared establishes intent to file for Title II benefits on behalf of the service person and any individual eligible on his or her earnings record. See RS 01702.370 for the policy on processing DD-1300s in other than MIA situations and additional instructions on processing survivor applications.

If the DD-1300 indicates that the service person was placed in MIA status earlier than the date the DD-1300 was prepared, the protective filing date is the date the service person was placed in MIA status.

When the DD-1300 is received, document the protective filing information on the 800 Number System Worksheet. Since the request date on the Worksheet will always be the date the Worksheet is prepared, the remarks portion of the Worksheet must contain the actual protective filing date established. The receipt fields for any issues posted must be blank otherwise the system will purge the protective filing documentation. The unit field must contain the entry “MIA” so these open protective filings can be identified on the pending leads listings. If an application is subsequently filed, the protective filing information will come up in the Modernized Claims System (MCS) path.

NOTE: The Air Force sends the DD-1300 to the San Antonio, Texas FO (815). All other branches of the service send forms DD-1300 to the Alexandria, Virginia FO (294).

A written statement of intent to file received by the RRB is also a protective filing for Social Security benefits if:

The statement indicates intent to claim benefits under the Railroad Retirement Act;

The individual filing the statement signs it;

An application is not filed with the RRB on one of its forms; and

The RRB sends us the statement.

NOTE: If an RRB application is filed, we will use the filing date of the RRB application as the filing date of the Social Security application.

Title II request for appeal

To protect the beneficiary against a loss of Title II benefits, use the date we receive the appeal request as a protective filing only if the beneficiary becomes eligible to Title II benefits while his or her appeal is pending. If the claimant requests to file a new disability application while his or her appeal is pending, see DI 51501.005.

The application filing date of the new application may also apply to the auxiliaries named on it. For more information on the application filing date, see GN 00204.007A.1. See GN 00204.010C for when intent to file is established for auxiliaries named on an application.

To determine when a Title XVI request for an appeal is a protective filing, see SI 00601.020.

NOTE: An appeal pends from the date we receive it to the date the appeal determination or decision is final, see GN 03101.060. For more information on the period covered by a final determination or decision, see DI 27510.001B.

EXAMPLE 1

Randall Anderson's period of disability terminated effective 6/06. In 7/06, he appealed the cessation determination, which was affirmed in a reconsideration determination dated 9/10/06. On 9/20/06, Mr. Anderson filed a request for a hearing, and the Administrative Law Judge (ALJ) upheld the decision in 6/07. Mr Anderson filed a new disability application in 12/07. The Disability Determinations Service established a period of disability for him beginning 9/6/06. Since Mr. Anderson became disabled again while his appeal was pending, his request for appeal dated 7/06 protects his filing date and his month of entitlement (MOET) is 10/06, the month after his onset date. If we did not use the 7/06 request for appeal as a protective writing, Mr. Anderson would lose benefits because we could only pay him based on the application he filed in 12/07, which would have 12 months retroactivity to 12/06.

EXAMPLE 2

Same as Example 1 except Mr. Anderson does not have a subsequent period of disability. Rather, he attains age 62 in 8/06 and becomes eligible for retirement benefits. Since 8/06 is within the appeal pending period, Mr. Anderson's filing date is 7/06 the date of the appeal request and his month of entitlement (MOET) is 9/06.

A request for Appeals Council (AC) review

A request for AC review that is based on additional evidence relating to a period after the Administrative Law Judge (ALJ) hearing decision is a protective writing. For guidelines on AC review of additional evidence, see DI 51501.015.

If the proper applicant does not file an application, the protective filing will be closed out based on the protective filing closeout language (60 days after the date of the notice) included in the AC notice explaining why it did not accept the evidence relating to the period after the ALJ decision.

Telephone Response Unit

A recorded message indicating intent to file for benefits may be a protective writing. See GN 00204.011 for the criteria and documentation requirements.

MCS Screens

The following screens are not retained in the MCS system beyond the day they are completed. Document the protective filing date established by these screens per GN 00204.010H.2.d.

Pre-Interview Output Screen (PREI). The PREI serves to protect the claimant’s filing date when the screen shows “Inquiry” based on intent to file for benefits, or “New Claim.” The date of contact shown on the screen is the protective filing date.

Pre-Interview Data Report (PR51). The PR51 serves to protect the claimant's filing date when the PREI reason for contact is, “New Claim.” The date of contact shown in the report is the protective filing date.

Title II unsigned application

If a closeout notice was issued for an earlier protective filing date or there is no earlier protective filing date, the date the SSA employee completed the Title II application may serve to protect the claimant's filing date if the signature requirements in GN 00204.010B.2. are met. See GN 00204.055 for protective filings involving Internet Claims completed on SSA’s website.

Manual IAR States. The date the State receives the IAR Authorization serves as the claimant's written statement of intent to file for SSI benefits and establishes a protective writing. The receipt date is the date the form is signed by the State representative.

NOTE: Not all States include protective filing closeout language on their IAR manual forms.

Automated IAR States. The date shown on the PR-73 Alert is presumed to be the date the IAR Authorization is signed by the applicant and the State representative.

NOTE: Automated IAR States must include protective filing closeout language on the IAR Authorization. See SI 02003.007 for the policy on when an IAR authorization must be used as the SSI filing date.

A Pre-effectuation Review Contact (PERC) may be used as a protective writing when initiated after adjudication of the SSI claim to process an appeal reversal. The PERC initiation date may serve as the claimant's Title II filing date provided the following criteria are met:

the Title II application that was filed as a result of the claimant filing the Title XVI application was correctly adjudicated and, therefore, not subject to reopening (e.g., the claimant was not insured or was not entitled to a higher Title II benefit than he or she was already receiving);

the claimant did not appeal the Title II decision or the decision was not reversed; and

the claimant became entitled to Title II benefits after the initial Title II determination.

NOTE: A PERC may not be used as a protective writing for Title II benefits if a PERC was initiated before adjudication of the SSI claim. The Title II application that was filed as a result of the claimant filing the Title XVI application is still open and must be adjudicated. Before adjudication, the PERC is used to update and complete the initial application process. Likewise, if the Title II application that was filed as a result of the claimant filing the Title XVI application has not been adjudicated, there is an open application issue. In either of these situations, the Title XVI application filing date (not the PERC initiation date) would be the Title II application filing date.

The Title II protective filing documentation retention period is 6 months after the date of the closeout notice.

Title XVI/Title VIII

The retention period is 90 days after the date of the closeout notice. See SI 00601.015 for additional Title XVI retention instructions.

Paper documentation

If no application is taken or a valid application is not filed within the retention period, destroy the protective filing documentation.

Application screens

All MCS/Modernized Supplemental Security Income Claims System (MSSICS) applications not receipted into the system before the protective filing period expires must be deleted from those systems when the retention period is met.

Use the 800 Number Leads/Protective Filing screens as the preferred means for documenting a protective filing by the claimant or third party. If an application appointment is scheduled at least 7 days in the future, the 800 Number System:

Generates an appointment confirmation notice when you schedule an application appointment at least 7 days in the future,

Includes Title II protective filing closeout language on the Title II only appointment confirmation notice,

NOTE: Closeout language is not included when the appointment is for a concurrent Title II and Title XVI application or when appointment scheduled is less than 7 days in the future.

Propagates the protective filing date to the MCS or MSSICS when the application is taken in these systems,

Eliminates retaining a paper copy of the protective filing documentation, and

Purges the protective filing documentation if a valid application is filed within 6 months (Title II) or 60 days (Title XVI) of the 800 Number Worksheet REC date for the corresponding Title II or Title XVI closeout issue.

Complete form SSA-2514, (Record of Claimant's Intent to File) (or its electronic equivalent), to document the Title II protective writing. You need not list auxiliaries on the form. Current spouse and child(ren) named on the NH’s application form that is subsequently filed receive the same protective filing date as the NH.

Document the protective filing evidence on the MCS/MSSICS Report of Contact RPOC/DROC screen or electronic evidence screens (EVID) to support the earlier filing date. Other paper documents that establish a protective writing may be faxed to NDRED.

For each auxiliary/survivor named on the application for whom a protective filing is established, create a PROTFL issue on the MCS/MSSICS Development Worksheet (DW01) screen and show the protective filing date in the REQ field. This procedure also applies to individuals named on a Title XVI application for whom a protective filing is established.